Simon's Megalomaniacal Legal Resources

Fairness - Notice of Allegations

. Dhaliwal v. College of Veterinarians of Ontario

In Dhaliwal v. College of Veterinarians of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed appeals from "decisions of the Discipline Committee (the “DC”) of the College of Veterinarians of Ontario (the “College”) involving three separate complaints. On each complaint, the DC held that Dr. Dhaliwal had engaged in professional misconduct and sanctions were imposed upon him".

Here the court considers appeal allegations of 'abuse of process', here that the discipline committee "failed to comply with ss. 24 [SS: 'Duties of Complaints Committee'] and 25 [SS: 'Review of complaints decision'] of the Veterinarians Act".

The appellant argued that complaints under the Veterinarians Act must relate to 'specific allegations' made to the subject professional, and that they were entitled to "production of the allegations drafted by the committee’s counsel":

[52] The record confirms that the appellant did, indeed, receive the Notice of Hearing shortly thereafter, which contained particulars of all of the allegations of professional misconduct that he would be responding to.

....

[54] Since the decision of the CC was to refer the matter under s. 24(2)(a) to the DC for a hearing, no reasons were given by the CC to the Registar, nor sent to the appellant. This is in accord with s. 24(3), which requires reasons only were a decision is made under ss. 24(2)(b) or (c).

[55] The appellant sought production of the allegations drafted by the committee’s counsel, but that was refused on the basis of solicitor/client privilege. A production motion, brought before the DC, was dismissed.

[56] The appellant argues that the decision of the CC must refer to specific allegations. He relies on a text by Richard Steinhecke, entitled A Complete Guide to the RHPA, at 6-3 and 6-4, where the author says the following:

The ICRC must refer "specified allegations". This phrase has been interpreted by the courts to mean that a committee cannot merely refer a person to discipline. There must be some description of the conduct being referred, with the scope of the discipline hearing confined to those allegations actually of concern to the referring committee. This rule prevents the prosecutor from adding new allegations without the concurrence of the statutory committee that made the referral.

[57] However, Steinhecke also referred to a two-stage referral, where the first stage is a decision to refer “in principle”, followed by the later formulation of specific allegations:

Many committees make referrals in two stages. The first stage is a decision to refer in principle. The matter is then sent to prosecuting counsel to prepare a statement of allegations. At the second stage, the statement of allegations is approved by the Committee as the "specified allegations" in the motion which formally refers the matter to the Discipline Committee. While this procedure is more than is required by law, it does ensure that the specified allegations are suitable for prosecution, and it does reduce the chances of the allegations being dismissed because of some technical error or omission. This two-step procedure also permits the reconsideration of the matter by the ICRC since it is probably not functus, or finished, with the matter until it signs of on the formal motion referring specified allegations.

[58] In Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, 2016 ONSC 7034 (Div. Ct.), the Divisional Court considered whether the College had jurisdiction to hold a discipline hearing in the absence of a referral by the College’s Inquiries, Complaints and Reports Committee (the “ICRC”) of a “specific allegation”. The court held that it did.

[59] In that case, as in the one before this court, the appellant argued that the ICRC (which is the functional equivalent of the CC in the case at bar) could not broadly indicate that they were referring a complaint to the Discipline Committee, but instead had to specify the matter being referred. Based on the evidence, the court held that the ICRC did refer specified allegations of professional misconduct, but did so by the two-step process described by Steinhecke, above. The Panel first decided to refer the matter to the Discipline Committee, “in principle”, and then instructed College counsel to draft specified allegations. These were circulated to members of the panel for consideration, and the draft allegations, or a variation of them, were then referred to the Discipline Committee for consideration.

[60] As in the case at bar, the appellant in Berge also sought production of the documents leading to the final referral, and it was refused on the basis of deliberative privilege. While that decision was not appealed, the Divisional Court nevertheless recognized, at para. 138, the need for this form of privilege:

The Tribunal’s approach recognizes that the principle of deliberative privilege permits members of adjudicative committees, such as the ICRC and the Discipline Committee, to discuss, deliberate and vote on issues that come before them, without being concerned that their discussions or votes will later be disclosed. The ICRC Panel members expressed opinions and voted by email. This is protected by deliberative privilege (see Agnew and Ontario Association of Architects (1988), 1987 CanLII 4030 (ON SC), 64 O.R. (2d) 8 (Ont. Div. Ct.) at paras 27-33; Ellis-Don Ltd. v. Ontario (Labour Relations Board) (1994), 1994 CanLII 10531 (ON SC), 16 O.R. (3d) 698 (Ont. Div. Ct.) at paras. 10; Wilson v. College of Physicians & Surgeons (Ontario), [1981] O.J. No. 2472 (Ont. Div. Ct.) at para. 14).

[61] Berge was dealing with the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as opposed to the provisions of the Veterinarians Act at issue in the case at bar. Nevertheless, it stands for the principle that, despite the requirement of the Code that the ICRC “refer a specified allegation” to the Discipline Committee, it could do so by referring the matter “in principle”, with the specified allegations to follow later. That principle is applicable to the case at bar.

[62] Any doubt in that regard was answered in Walia v. College of Veterinarians of Ontario, 2018 ONSC 6189 (Div. Ct.), which dealt with the same legislation at issue in the case at bar. At para. 10, Thorburn J. (as she then was) followed Berge in approving the two-step referral process:

In this case, once the Complaints Committee had decided in principle to refer the allegations of professional misconduct to the Discipline Committee for a hearing, counsel for the College drafted the specific allegations for the Complaints Committee’s consideration. This process has been approved of by this Court in Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, 2016 ONSC 7034 (Ont. Div. Ct.).

[63] Walia returned two years later before a full panel of the Divisional Court: Walia v. College of Veterinarians of Ontario, 2020 ONSC 8057 (Div. Ct.). Dr. Walia’s complaint was that the original complaint against him raised only three issues, whereas the Notice of Hearing set out nineteen allegations against him. He argued that, had he been given an opportunity to respond to those nineteen allegations when the matter was before the CC, it would never have been referred to the DC. His motion before the Divisional Court included a request for an order that the CC give him a copy of the reasons for their decision to refer the complaint to the DC.

[64] While Dr. Walia’s motion was ultimately dismissed on procedural grounds, Favreau J., speaking for the court, commented on the merits as well. At para. 37, she minimized the importance of the initial referral as but “one step” in the discipline process:

In any event, the referral of the complaint from the Complaints Committee to the Discipline Committee is one step in the discipline process. Once the matter was referred to the Discipline Committee, Dr. Walia had a full opportunity to defend against the allegations made against him. Any defects in the referral were cured by the hearing. If the allegations against Dr. Walia were unfounded, he had an opportunity to defend against them.

[65] At paras. 42 and 43, Favreau J. pointed out that there was no requirement that the CC give its decision in writing, and the Notice of Hearing sufficed to put Dr. Walia on notice of the case he had to meet:

Section 24(3) goes on to state that the Complaints Committee must give its decision in writing under 24(2)(b) and (c), but there is no such requirement when the complaint is referred to the Discipline Committee.

In this case, as indicated above, the Notice of Hearing set out the allegations of professional misconduct against Dr. Walia. He knew what allegations he had to respond to for the hearing and had a full opportunity to defend against those allegations.

[66] Those comments apply equally to the case at bar.

[67] The letter sent by Ms. Robinson did, in fact, notify the appellant of the decision of the CC, as required by s. 25(1). The CC, as reflected in the Minutes, decided to refer “specified allegations of professional misconduct” to the DC. It did not elaborate on what those allegations were, other than making reference to a draft that had been prepared by counsel, which it is not required to disclose. Clearly, this was a referral “in principle”, which is permissible on the authority of Berge. This was later followed by detailed allegations, all of which were set out in the Notice of Hearing, which was sent to the appellant shortly afterward. This put the appellant fully on notice of the case he had to meet. There is no evidence that he was prejudiced in his defence by reason of the fact that those particulars were not included in the first letter from Ms. Robinson. He had a full opportunity to defend against those allegations at the hearing, and did so.

. Foglia v. Grid Link Corp.

In Foglia v. Grid Link Corp. (Div Court, 2024) the Ontario Divisional Court dismissed an appeal, this from an interlocutory OBCA order that required the appellant to purchase the respondent's interest in a corporation.

Here court considered the adequacy of notice of allegations in the proceedings:

[16] In Singh v. Trump, 2016 ONCA 747, at paras. 148 to 149, in the context of a motion for judgment, the court said the following about the requirement that parties have notice of the matters that will be at issue on a hearing:

However, a motion judge may not grant or dismiss a claim on a motion for summary judgment that is not within the scope of the motion before him or her. Doing so would deny procedural fairness and natural justice.

A fair hearing requires that a party have notice of the matters that will be at issue at the hearing and of how that party may be affected by the hearing’s outcome. [Citation omitted.]

[17] In the present case, the appellants argue that the only issue before the motion judge was whether the application should be treated as an action pursuant to rule 38.10(2) of the Rules of Civil Procedure. They say that they had no notice that the issue of whether a sale of Foglia’s shares to them would be considered, and that as a result, they were denied procedural fairness.

[18] I agree that in the circumstances of this case, it would have been better if the motion judge, after coming to a preliminary conclusion that an order for sale of the shares was required to move the matter forward, had given the parties a further opportunity to argue that point. However, two factors attenuate concerns about procedural fairness.

[19] First, although the appellants did not have notice that the issue of whether Foglia’s shares should be sold to them would be dealt with on the motion, they did have notice of the argument that formed the basis of the motion judge’s decision. Second, the appellants have not shown any prejudice or substantive unfairness to have resulted from not being given a further opportunity to argue the issue.

. Duiker v. Canada (Attorney General)

In Duiker v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal, this from a Federal Court JR dismissal issued, this from "a decision of the Regional Director of the Labour Program of Employment and Social Development Canada (ESDC)", here regarding "a work refusal pursuant to section 128 [SS: 'Refusal to Work if Danger'] of the Canada Labour Code" at a maximum-security prison.

The court considers an administrative fairness issue, here inadequate notice of the case to be met (allegations):

[14] The appellants also submit that they did not know the case to meet, as they were uninformed of "“bad faith”" allegations until the Decision was made. While true, we accept the Federal Court’s observations that the appellants were on notice that their work refusal was considered illegal and were aware of the material facts underpinning the determination of bad faith. The Federal Court concluded, and we agree, that a failure to explicitly mention "“bad faith”" prior to the Decision did not result in procedural unfairness.

. Vanovac v. Canada (Public Safety and Emergency Preparedness)

In Vanovac v. Canada (Public Safety and Emergency Preparedness) (Fed CA, 2024) the Federal Court of Appeal dismissed a (certified) appeal of a immigration JR, here where the "Immigration Division of the Immigration and Refugee Board of Canada", found the appellant to be "a person described in paragraph 35(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), namely a prescribed senior official in the service of a designated regime".

Here the court considers the procedural fairness issue of the adequacy of 'notice of the allegations' made against the appellant:

[3] Mr. Vanovac sought judicial review of the decision and argued that there had been a breach of procedural fairness because the Immigration Division made its findings on a broad view of section 16 of the Regulations, instead of just paragraph 16(c) of the Regulations. Mr. Vanovac did not take issue with the reasonableness of the Immigration Division’s decision.

[4] In reasons cited as 2024 FC 148, the Federal Court dismissed Mr. Vanovac’s application for judicial review. After noting that the duty of procedural fairness owed to Mr. Vanovac was at the higher end of the spectrum and that the Immigration Division had followed the appropriate procedure for finding someone inadmissible to Canada pursuant to paragraph 35(1)(b) of the IRPA, the Federal Court concluded that there was no breach of Mr. Vanovac’s right to procedural fairness. The Federal Court determined that the Immigration Division did not have the obligation to forewarn Mr. Vanovac of the particular paragraphs of section 16 of the Regulations that might be at play given the non-exhaustive list of positions in section 16 of the Regulations. The Federal Court nonetheless certified the following question:

Does the duty of procedural fairness owed to an applicant in the context of potential inadmissibility under paragraph 35(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27, require detailed notice about the specific nature of the allegations against an individual in respect of the broad, non-exhaustive categories of a “prescribed senior official” under section 16 of the Immigration and Refugee Protection Regulations, SOR/2002-227?

[5] We are all of the opinion that the certified question must be answered in the negative. While the duty of procedural fairness requires that notice be provided of the specific nature of the allegations made against the individual alleged to be inadmissible under paragraph 35(1)(b) of the IRPA, it does not require that notice of a particular category or categories of a "“prescribed senior official”" under section 16 of the Regulations be provided by the Immigration Division.

[6] The Immigration Division is an administrative tribunal that has specialized expertise in making admissibility findings under the IRPA. Pursuant to sections 165 and 173 of the IRPA, it enjoys a broad discretion in the conduct of a hearing that cannot be fettered or controlled by the submissions of the parties. The focus of the inquiry before the Immigration Division was whether Mr. Vanovac was a prescribed senior official pursuant to paragraph 35(1)(b) of the IRPA as supplemented by section 16 of the Regulations. As such, the Immigration Division was not bound by the parties’ arguments on the appropriate characterization of Mr. Vanovac’s position (Julien v. Canada (Public Safety and Emergency Preparedness), 2015 FC 150 at para. 23).The Immigration Division did not reject the joint submissions arbitrarily and instead provided clear reasons for doing so.

[7] In any event, we are satisfied that, in the circumstances of this case, there was no breach of procedural fairness.

[8] As the Federal Court noted, the report under subsection 44(1) of the IRPA specifically referred to paragraph 35(1)(b) of the IRPA and section 16 of the Regulations, without limitation. The report also signaled that the inadmissibility allegation stemmed from Mr. Vanovac’s position as President of the Central Commission for the Exchange of Prisoners of War between July 1992 and March 1993. In addition, Mr. Vanovac received disclosure of the documents the Minister intended to rely on for the purposes of the inadmissibility finding. We find that Mr. Vanovac knew the case he had to meet to overcome the inadmissibility finding. Mr. Vanovac has not discharged his burden of demonstrating that a breach occurred nor has he shown how a more detailed notice would have affected his ability to respond to the inadmissibility allegations.